Proceedings of the Workshop - United Nations Office for Outer ...

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78 EXPANDING GLOBAL COMMUNICATIONS SERVICES1000 MHz of spectrum sought for either only for anational service, or in the case of systems to be set upfor the use of less-developed countries.Minneapolis has applied strict criteria for theintroduction of ‘cost recovery' and its quantum.However, more should be made of the concept.With the development of privatisation, competitionand commercialisation in telecommunications generally,as well as in the space segment, consideration should begiven as to the introduction of a ‘resource utilisationfee’. In that radio is a ‘limited natural resource’ (CSart. 44.2), why should its use not be paid for? The ideais not new.37 And it has been acted on. We have seenin a number of countries a willingness on the part of thestate to generate income for itself through the sale orlease of spectrum space, or the introduction of ‘biddingsystems’ for the allocation of broadcasting licences.38Those who are to gain commercially by the use of ageneral natural resource should be willing to pay for it.The precedent of the Area under Part XI the 1982Convention on the Law of the Sea is not irrelevant,though its mention will doubtless resonate with thosewho bitterly opposed the introduction of its concepts.Of course this raises various questions, anddoubtless opposition who would see it as an unlawfultax on enterprise. Does not the second paragraph Art.I of the Outer Space Treaty speak of the use of space37H.J. Levin, The Invisible Resource: Use and Regulation o f theRadio Spectrum, (Baltimore MD: Johns Hopkins Press, 1971).38 J.C. Thompson, ’Space for Rent: The InternationalTelecommunication Union, Space Law and Orbit/SpectrumLeasing’ (1996) 62 J. Air Law and Comm., 279-311. In the USand Australia, spectrum bands have been auctioned by therelevant governmental authorities. Cf. G.L. Rosston and J.S.Steinberg, ‘Using Market-based Spectrum Policy to promote thePublic Interest’, 1997 FCC LEXIS 384; I. Coe, ‘Legal Issuessurrounding Spectrum Auctions’ a paper at the 1998 MelbourneColloquium of the IISL, 1998 41 Proc. IISL. 194-204. In theUK the last round of commercial television broadcastinglicences was allocated on the basis of bids by companies, andmobile phone spectrum bands may also be auctioned. See alsogenerally F. Lyall, The International TelecommunicationUnion: A Global FCC7 ( 1994) 37 Proc. IISL, 42-7.being ‘free’? But does the term ‘free’ mean ‘availableto all’, or does it preclude a financial aspect over andabove the cost of getting there? I would suggest a ‘fee’is not excluded by the word ‘free’.Other questions should be discussed. What wouldbe the basis of assessment? I am attracted by acalculation based on the number of satellites in asystem, their individual cost, the extent of the spectrumband used, and a flat rate per 1000 MHz.. Should sucha ‘utilisation fee’ be one-off, or a continuing annualpayment? Who should administer it? - the ITU seemsthe obvious candidate.And, lastly; what should be done with the income?Of course those subject to the fee would argue it shouldbe returned as subsidy for maintaining uneconomicservices, but that would merely invite abuse. My ownpreference would be to make the sums available to theUN system, perhaps fostering development, refugees orthe work of such as World Health. But this takes usinto very different waters.An international regulator?As I have thought of the content of this paper, andstarted in on its writing, I have become more and morepersuaded of several matters that arise from theincreased demand for telecommunications services, andfrom the irruption of commercial business practicesbrought in through the privatisation oftelecommunications and modem dogma as tocompetition.The ITU is clearly overburdened. Although it hasdone well in mutating into its new forms, its agenda,particularly in radio, is too great. The agenda for thenext World Radio Conference in 2000 is likely to beenormous, and arguably such matters are gettingbeyond the ability of many delegates to comprehend.1 question whether the present internationalarrangements satisfactorily secure the general worldpublic interest in the provision of globaltelecommunications services open to all withoutdiscrimination.
EXPANDING GLOBAL COMMUNICATIONS SERVICES 79First, the approach of commercial businesses isdirected to the maximisation of profit and the reductionand often excision of non-commercial activities. Thisis not well adapted to the UN stated, and widelyaccepted, notions of telecommunications as a publicservice.39Second, although competition is a watchword muchtouted, there is a tendency towards the establishment bycompanies of dominant positions in markets. As amatter of fact, in many states competition has to besecured and monopoly and dominance diminished bysuitable governmental supervision. The US has theFCC, the UK has the Office of Telecommunications(OFTEL) and the Monopolies Commission. TheEuropean Union monitors and preserves competition asone of its aims. These bodies serve a useful function.However, such supervision is lacking at theinternational level.Third, ex natura the decision of a state as to aspace system has a global effect, but in grants oflicences to telecommunications entities, each state seeksto secure the interests of its own nationals, withoutnecessarily taking into consideration the welfare of theworld as a whole.Fourth, and allied to the immediately previouspoint, there is insufficient separation between thetechnical supervision and facilitation of internationaltelecommunications and the politics and economicsinvolved. The size and content of delegations (and theirhangers-on) to ITU conferences, and the lobbying forcommercial advantage that seems to be involved, provesthe point.Fifth, where an element in a delegation is devotedreally only to a part of the agenda of a conference, theoverall result of the conference can be distorted andunsatisfactory.Many of these difficulties could be alleviated, if notentirely met, by the creation of an internationalregulator and supervisor, which would licence civilianspace telecommunications activities. Although an39 Cf. the aspirations expressed in UNGA Res. 1721, referred toabove.individual state would remain responsible in law for thelicensed activities, a direct approach should be availableto the providers of global international services of theINTELSAT or INMARSAT model, even after theirmutation. The regulator should be given power ordiscretion not to accept proposals which are withoutsubstantive connection with the proposing state. Itshould also be able to reject proposals from stateswhose competence in space or radio matters isquestionable. In licensing the regulator should dealwith technical requirements and act in the best interestsof the world as a whole, taking into due account thewell-being of both the developed and the less developedstates. Proposed rulings should be published, andopportunity be given to interested parties, and to thosewith an interest in such matters (the two are not thesame) to intervene in opposition or with amendments.The efficient use of the radio spectrum and of orbitalpositions would thereby be facilitated. The regulatorybody would act both on a cost recovery basis forprocessing applications, and also could derive incomefrom a suitable resource utilisation fee. Given itsstanding in telecommunications matters, the ITU,suitably adapted could provide this new regulator. (I amaware that some within the ITU would seek not to havesuch a role.) Its base would come from theRadiocommunications Bureau and the RadioRegulations Board. A good, though improveable,model would be the US Federal CommunicationsCommission.I recognise that this is a lot to ask for. But it wouldseem the best way to come closer to the provision ofglobal telecommunications by satellite open to allwithout discrimination and on a basis of equality.The Content of TelecommunicationsLast, and with more than a little diffidence, I would tagthe rights of the individual to hold and express opinion,widely framed in many lists of Human Rights, freedomof expression, freedom of communication, and similarmatters. Within the ITU Constitution it is incumbenton Member states to recognise ‘the right of the publicto correspond by means of the international service ofpublic correspondence’ (CS art. 33). The secrecy ofinternational correspondence is also provided for,
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ST/SPACE/2Office for Outer Space Af
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IntroductionThe Workshop on Space L
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CONCLUSIONS AND PROPOSALS OF THEWOR
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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SESSION SIXExpanding Global Navigat
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SESSION EIGHTMaintaining the Space
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220Session 3: Wednesday. 21 July. 1
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223Annex IITHIRD UNITED NATIONS CON
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225No Name Address E-Mail27. Ersfel
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